ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Escrow Agreement"), is made
and entered into as of January 6, 2000, by and between
CAMBEX CORPORATION, a Massachusetts corporation (the
"Company"), and the Persons listed on the Purchaser
Signature Pages attached hereto (each of whom is
individually referred to as a "Purchaser" and all of
whom collectively are referred to as the "Purchasers"),
and SUNTRUST BANK, ATLANTA, a Georgia banking
corporation, as Escrow Agent hereunder ("Escrow
Agent").
BACKGROUND
The Company has engaged Sovereign Capital Advisors,
LLC, a Nevada limited liability company ("Sovereign")
to assist it in locating qualified investors to
purchase up to $2,000,000 in original principal amount
of convertible, secured, Series 1 Bridge Notes of the
Company (the "Securities"), pursuant to a Series 1
Bridge Note Purchase and Security Agreement (the
"Purchase Agreement"). Pursuant to the Purchase
Agreement, Purchasers are required to deliver to Escrow
Agent full payment of the purchase price of the
Securities purchased at the time such Purchasers
execute the Purchase Agreement (the "Escrow Funds").
Escrow Agent shall accept, hold, and disburse the
Escrow Funds deposited with Escrow Agent in accordance
with the terms of this Escrow Agreement. There is no
minimum amount of Escrow Funds which must be held by
Escrow Agent before the Escrow Agent may disburse
Escrow Funds to the Company pursuant to a Release
Notice meeting all of the terms and conditions set
forth herein.
AGREEMENT
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the
parties hereto, for themselves, their successors, and
assigns, hereby agree as follows:
Section 1. Definitions.
The following terms shall have the following meanings
when used herein:
"Cash Investment" means the purchase price of the
Securities to be purchased by any Purchaser as set
forth on the signature page to the Purchase Agreement
executed by such Purchaser.
"Cash Investment Instrument" means a wire transfer of
immediately available funds deposited in the "Cambex
Corporation-Escrow Account," in full payment of the
purchase price of the Securities to be purchased by any
Purchaser as set forth on the signature page to the
Purchase Agreement executed by such Purchaser.
"Escrow Funds" means the Cash Investments deposited
with the Escrow Agent pursuant to this Escrow
Agreement.
"Release Notice" shall mean a written notification, or
written notifications, if more than one, signed by the
Company which shall indicate: (a) the name and address,
the Securities purchased, and the Cash Investment of
each Purchaser, (b) any withdrawal of a subscription by
the Purchaser, (c) any other termination, for whatever
reason, of a subscription, and (d) a closing statement
which identifies the total proceeds from the sale of
the Securities, the fees, reimbursable costs, and
expenses of Sovereign and counsel to Sovereign, and the
instructions for disbursement of the Escrow Fund.
Section 2. Appointment of and Acceptance by Escrow
Agent.
The Company and Purchasers hereby appoint Escrow Agent
to serve as Escrow Agent hereunder, and Escrow Agent
hereby accepts such appointment in accordance with the
terms of this Escrow Agreement. The Company agrees
that prior to commencement of the offering to
Purchasers, the Company shall request in writing that
Escrow Agent shall establish the "Cambex Corporation-
Escrow Account," as more particularly described in
Section 3(a) hereto (the "Escrow Account") into which
the Cash Investment Instruments from Purchasers shall
be deposited. Escrow Agent agrees to establish the
Escrow Account promptly after such request and after
the Escrow Agent shall have received in writing all
information reasonably requested from the Company and
Sovereign. Escrow Agent is authorized to rely on
written communications from Sovereign concerning all
matters related to this Escrow Agreement, provided,
that Sovereign shall not have the power to waive any
conditions or to modify or amend the terms of this
Escrow Agreement, without express authorization of the
Company or Purchasers and Escrow Agent, as the case may
be.
Section 3. Deposits into Escrow.
(a) All Cash Investment Instruments from Purchasers
shall be deposited into the Escrow Account described
below:
Bank: SunTrust Bank, Atlanta
Corporate Trust
Department ABA 061000104
Routing No.:
Center: 008
Account No.: 9088000008
Attn: Rebecca Fischer
Re: Cambex Corporation-
Escrow Account
ALL ESCROW FUNDS DEPOSITED IN THE ESCROW
ACCOUNT SHALL REMAIN THE PROPERTY OF THE
PURCHASERS ACCORDING TO THEIR RESPECTIVE
INTERESTS AND SHALL NOT BE SUBJECT TO ANY
LIEN OR CHARGE BY ESCROW AGENT OR BY JUDGMENT
OR CREDITORS' CLAIMS AGAINST THE COMPANY
UNTIL RELEASED TO THE COMPANY IN ACCORDANCE
WITH SECTION 5 HEREOF.
(b) Purchasers will transmit Escrow Funds by
wire transfer. Wire transfers are subject to
collection requirements of presentment and
final payment. Escrow Funds in the Escrow
Account cannot be drawn upon or disbursed
until such time as final payment has been
made and all of the wire transfers are no
longer subject to dishonor. Upon receipt,
Escrow Agent shall process each Cash
Investment Instrument for collection, and the
proceeds thereof shall be held as part of the
Escrow Funds until disbursed in accordance
with Section 5 hereof. If, upon presentment
for payment, any Cash Investment Instrument
is dishonored, Escrow Agent's sole obligation
shall be to notify the Company of such
dishonor and to return such Cash Investment
Instrument to Purchaser. Notwithstanding the
foregoing, if for any reason any Cash
Investment Instrument is uncollectible after
payment of the Escrow Funds represented
thereby has been made by Escrow Agent in
accordance with this Escrow Agreement, the
Company shall immediately reimburse Escrow
Agent upon receipt from Escrow Agent of
written notice thereof.
(c) All Cash Investment Instruments shall be
immediately available Escrow Funds sent by
wire transfer to the Escrow Account and
Escrow Agent shall not be obligated to
accept, or present for payment, any Cash
Investment Instrument that is not payable in
that manner.
Section 4. Other Information to be furnished to
Escrow Agent.
The Company shall, on the date hereof, provide to
Escrow Agent the name, taxpayer identification number,
address, and such other information as may be required
for withholding and reporting purposes such as either
U.S. Treasury Department Form W-9 or another applicable
form, e.g., W-8 for each Purchaser.
Section 5. Disbursements of Escrow Funds.
(a) Release Notice Upon Completion of
Offering. Subject to the provisions of
Section 13 hereof, Escrow Agent shall
disburse the amounts in the Escrow Account as
directed in a Release Notice, by wire
transfer, promptly after receipt of a Release
Notice from Company. Notwithstanding the
foregoing Escrow Agent shall not be obligated
to disburse the Escrow Funds if Escrow Agent
has grounds to believe that (a) Cash
Investment Instruments have not been
received, deposited with, and collected by
the Escrow Agent in an amount at least equal
to the amount specified in the Release Notice
or (b) the Release Notice is materially
incorrect or incomplete.
(b) Rejection of any Subscription or
Termination of the Offering. No later than
fifteen (15) business days after receipt by
Escrow Agent of written notice (i) from the
Company or Sovereign that the Company intends
to reject a Purchaser's subscription, or (ii)
from the Company or Sovereign that there will
be no closing of the sale of Securities to
Purchasers, Escrow Agent shall pay to the
applicable Purchasers, by certified or bank
check sent by first class mail, the amount of
the Cash Investment paid by each Purchaser,
without interest or deduction.
(c) Expiration of Offering Period.
Notwithstanding anything to the contrary
contained herein, if Escrow Agent shall not
have received a Release Notice for the First
Closing on or before January 30, 2000, and a
Release Notice for the final closing on or
before March 1, 2000, Escrow Agent shall,
within fifteen (15) business days after each
such date and without any further instruction
or direction from Sovereign or the Company,
return to each Purchaser, by certified or
bank check sent by first class mail, all
their respective Cash Investments then held
by Escrow Agent.
Section 6. Provisions for Benefit of Escrow Agent.
(a) Escrow Agent undertakes to perform only
such duties as are expressly set forth
herein, and no additional duties or
obligations shall be implied hereunder. In
performing its duties under this Escrow
Agreement, or upon the claimed failure to
perform any of its duties hereunder, Escrow
Agent shall not be liable to anyone for any
damages, losses, or expenses which may be
incurred as a result of Escrow Agent so
acting or failing to so act; provided
however, Escrow Agent shall not be relieved
from liability for damages arising out of its
proven gross negligence or willful misconduct
under this Escrow Agreement. Escrow Agent
shall in no event incur any liability with
respect to (i) any action taken or omitted to
be taken in good faith upon advice of legal
counsel, which may be counsel to any party
hereto, given with respect to any question
relating to the duties and responsibilities
of Escrow Agent hereunder, or (ii) any action
taken or omitted to be taken in reliance upon
any in instrument delivered to Escrow Agent
and believed by it to be genuine and to have
been signed or presented by the proper party
or parties. Escrow Agent shall not be bound
in any way by any agreement or contract
between the Company and Purchaser, whether or
not Escrow Agent has knowledge of any such
agreement or contract.
(b) The Company and Purchasers each warrant
to and agree with Escrow Agent that, unless
otherwise expressly set forth in this Escrow
Agreement, there is no security interest in
the Escrow Funds or any part of the Escrow
Account; no financing statement under the
Uniform Commercial Code of any jurisdiction
is on file in any jurisdiction claiming a
security interest in or describing, whether
specifically or generally, the Escrow Funds
or any part of the Escrow Funds; and the
Escrow Agent shall have no responsibility at
any time to ascertain whether or not any
security interest exists in the Escrow Funds
or any part of the Escrow Funds or to file
any financing statement under the Uniform
Commercial Code of any jurisdiction with
respect to the Escrow Funds or any part
thereof.
Section 7. Suspension of Performance or
Disbursement Into Court.
(a) As an additional consideration for and
as an inducement for Escrow Agent to act
hereunder, it is understood and agreed that,
in the event of any disagreement between the
parties to this Escrow Agreement or among
them or any other person(s) resulting in
adverse claims and demands being made in
connection with or for any money or other
property involved in or affected by this
Escrow Agreement, Escrow Agent shall be
entitled to refuse to comply with the demands
of such parties, or any of such parties, so
long as such disagreement shall continue. In
such event, Escrow Agent shall make no
delivery or other disposition of the Escrow
Funds or any part of such Escrow Funds.
Anything herein to the contrary
notwithstanding, Escrow Agent shall not be or
become liable to such parties or any of them
for the failure of Escrow Agent to comply
with the conflicting or adverse demands of
such parties or any of such parties. Escrow
Agent shall be entitled to continue to
refrain and refuse to deliver or otherwise
dispose of the Escrow Funds or any part
thereof or to otherwise act hereunder, as
stated above, unless and until: (a) the
rights of such parties have been finally
settled by binding arbitration or duly
adjudicated in a court having jurisdiction of
the parties and the Escrow Funds and Escrow
Agent shall have received written notice
thereof or (b) the parties have reached an
agreement resolving their differences and
have notified Escrow Agent in writing of such
agreement and have provided Escrow Agent with
indemnity satisfactory to Escrow Agent
pursuant to Section 12 hereof against any
liability, claims, or damages resulting from
compliance by Escrow Agent with such
agreement.
(b) In the event of a disagreement between
such parties as described above, Escrow Agent
shall have the right, in addition to the
rights described above and at the option of
Escrow Agent, to tender into the registry or
custody of any court having jurisdiction, all
money and property comprising the Escrow
Account and may take such other legal action
as may be appropriate or necessary, in the
opinion of Escrow Agent or its counsel. Upon
such tender, the parties hereto agree that
Escrow Agent shall be discharged from all
further duties under this Escrow Agreement;
provided however, that the filing of any such
legal proceedings shall not deprive Escrow
Agent of its compensation hereunder earned
prior to such filing and discharge of Escrow
Agent of its duties hereunder.
(c) Escrow Agent shall have no liability to
Sovereign, the Company, any Purchaser, or any
other person with respect to any such
suspension of performance or disbursement
into court, specifically including any
liability or claimed liability that may
arise, or be alleged to have arisen, out of
or as a result of any delay in the
disbursement of Escrow Funds held in the
Escrow Account or any delay in or with
respect to any other action required or
requested of Escrow Agent.
(d) The parties hereto agree that, in the
event any controversy arises under or in
connection with this Escrow Agreement or the
Escrow Funds, or Escrow Agent is made a party
to or intervenes in any litigation pertaining
to this Escrow Agreement or the Escrow Funds,
to pay to Escrow Agent reasonable
compensation for its extraordinary services
and to reimburse Escrow Agent for all costs
and expenses associated with such controversy
or litigation.
(e) Escrow Agent shall have no obligation to
take any legal action in connection with this
Escrow Agreement or towards its enforcement,
or to appear in, prosecute, or defend any
action or legal proceeding which would or
might involve it in any cost, expense, loss,
or liability unless security and indemnity,
as provided in Section 12 hereof shall be
furnished.
Section 8. Investment of Escrow Funds.
Escrow Agent shall not invest or reinvest the Escrow
Funds. The parties to this Escrow Agreement
acknowledge that no interest shall accrue or be paid
with respect to the Escrow Funds.
Section 9. Removal of Escrow Agent.
Escrow Agent may be removed, with or without cause, by
the Company and all Purchasers, acting jointly, in
writing, at any time by the giving of thirty (30) days
prior written notice to Escrow Agent. Such removal
shall take effect upon the appointment of a successor
escrow agent as provided hereinbelow. Upon any such
notice of removal, the Company shall appoint a
successor escrow agent hereunder, which shall be a
commercial bank, trust company, or other financial
institution with a combined capital and surplus in
excess of $100,000,000. Upon the acceptance in writing
of any appointment as Escrow Agent hereunder by a
successor escrow agent, such successor escrow agent
shall thereupon succeed to, and become vested with, all
the rights, powers, privileges, and duties of the
retiring Escrow Agent, and the retiring Escrow Agent
shall be discharged from its duties and obligations
under this Escrow Agreement. After any retiring Escrow
Agent's removal, the provisions of this Escrow
Agreement shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Escrow
Agent under this Escrow Agreement.
Section 10. Resignation of Escrow Agent.
Escrow Agent may resign at any time from its
obligations under this Escrow Agreement by providing
written notice to the parties hereto. Such resignation
shall be effective on the date set forth in such
written notice which shall be no earlier than 20 days
after such written notice has been given. In the event
no successor escrow agent has been appointed on or
prior to the date such resignation is to become
effective, Escrow Agent shall be entitled to tender
into the custody of a court of competent jurisdiction
all assets then held by it hereunder and shall
thereupon be relieved of all further duties and
obligations under this Escrow Agreement. Escrow Agent
shall have no responsibility for the appointment of a
successor escrow agent hereunder. After Escrow Agent's
resignation the provisions of this Escrow Agreement
shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was escrow agent
under this Escrow Agreement.
Section 11. Liability of Escrow Agent.
(a) Escrow Agent's sole responsibility shall
be for the safekeeping and disbursement of
the Escrow Funds in accordance with the terms
of this Escrow Agreement. Escrow Agent shall
have no implied duties or obligations and
shall not be charged with knowledge or notice
of any fact or circumstance not specifically
set forth herein.
(b) Escrow Agent shall not be liable for any
error of judgment, or for any act done or
step taken or omitted by it in good faith, or
for any mistake of fact or law, or for
anything which it may do or refrain from
doing in connection herewith, except for its
own gross negligence or willful misconduct.
(c) In no event shall Escrow Agent be liable
for incidental, indirect, special,
consequential, or punitive damages. Escrow
Agent shall not be obligated to take any
legal action or commence any proceeding in
connection with the Escrow Funds or the
Escrow Account in which Escrow Funds are
deposited or this Escrow Agreement, or to
appear in, prosecute, or defend any such
legal action or proceeding. Without limiting
the generality of the foregoing, Escrow Agent
shall not be responsible for or required to
enforce any of the terms or conditions of any
Purchase Agreement with any Purchaser or any
other agreement between the Company,
Sovereign, and/or any Purchaser. Escrow
Agent shall not be responsible or liable in
any manner for the performance by the Company
or any Purchaser of their respective
obligations under any Purchase Agreement nor
shall Escrow Agent be responsible or liable
in any manner for the failure of the Company,
Sovereign, or any third party (including any
Purchaser) to honor any of the provisions of
this Escrow Agreement. Escrow Agent may
consult legal counsel selected by it in the
event of any dispute or question as to the
construction of any of the provisions hereof
or of any other agreement or of its duties
hereunder, and shall incur no liability and
shall be fully indemnified pursuant to
Section 12 hereof from any liability
whatsoever in acting in accordance with the
opinion or instruction of such counsel. The
Company shall promptly pay, upon demand, the
reasonable fees and expenses of any such
counsel.
(d) Escrow Agent is authorized to comply
with orders issued or process entered by any
court with respect to the Escrow Funds,
without determination by the Escrow Agent of
such court's jurisdiction in the matter. If
any portion of the Escrow Funds is at any
time attached, garnished, or levied upon
under any court order, or in case the
payment, assignment, transfer, conveyance, or
delivery of any such property shall be stayed
or enjoined by any court order, or in case
any order, judgment, or decree shall be made
or entered by any court affecting such
property or any part thereof, then and in any
such event, the Escrow Agent is authorized,
in its sole discretion, to rely upon and
comply with any such order, writ, judgment,
or decree without the need for appeal or
other action; and if the Escrow Agent
complies with any such order, writ, judgment,
or decree, it shall not be liable to any of
the parties hereto or to any other person or
entity by reason of such compliance even
though such order, writ, judgment, or decree
may be subsequently reversed, modified,
annulled, set aside, or vacated.
Section 12. Indemnification of Escrow Agent.
The Company and Purchasers jointly and severally agree
to indemnify Escrow Agent and it officers, directors,
employees, and agents and save Escrow Agent and its
officers, directors, employees, and agents harmless
from and against any and all Claims (as hereinafter
defined) and Losses (as hereinafter defined) which may
be incurred by Escrow Agent or any of such officers,
directors, employees, or agents as a result of Claims
asserted against Escrow Agent or any of such officers,
directors, employees, or agents as a result of or in
connection with Escrow Agent's capacity as such under
this Escrow Agreement by any person or entity. For the
purposes hereof the term "Claims" shall mean all
claims, lawsuits, causes of action, or other legal
actions and proceedings of whatever nature brought
against (whether by way of direct action, counterclaim,
cross action, or impleader) Escrow Agent or any such
officer, director, employee, or agent, even if
groundless, false, or fraudulent, so long as the claim,
lawsuit, cause of action, or other legal action or
proceeding is alleged or determined, directly or
indirectly, to arise out of, result from, relate to, or
be based upon, in whole or in part: (a) the acts or
omissions of the Company or Purchasers, (b) the
appointment of Escrow Agent as escrow agent under this
Escrow Agreement, or (c) the performance by Escrow
Agent of its powers and duties under this Escrow
Agreement; and the term "Losses" shall mean losses,
costs, damages, expenses, judgments, and liabilities of
whatever nature (including, but not limited to,
attorneys', accountants', and other professionals'
fees, litigation, and court costs and expenses and
amounts paid in settlement), directly or indirectly
resulting from, arising out of, or relating to one or
more Claims. Upon the written request of Escrow Agent
or any such officer, director, employee, or agent (each
referred to hereinafter as an "Indemnified Party"), the
Company and Purchasers jointly and severally agree to
assume the investigation and defense of any Claim,
including the employment of counsel acceptable to the
applicable Indemnified Party and the payment of all
expenses related thereto and, notwithstanding any such
assumption, the Indemnified Party shall have the right,
and the Company and Purchasers jointly and severally
agree to pay the cost and expense thereof, to employ
separate counsel with respect to any such Claim and
participate in the investigation and defense thereof in
the event that such Indemnified Party shall have been
advised by counsel that there may be one or more legal
defenses available to such Indemnified Party which are
different from or additional to these available to
either the Company or Purchasers. The Company and
Purchasers hereby agree that the indemnifications and
protections afforded Escrow Agent in this section shall
survive the termination of the Escrow Agreement or the
resignation, removal, or effective resignation of
Escrow Agent pursuant to Section 7(b) hereof.
Section 13. Compensation to Escrow Agent.
The Company agrees to pay Escrow Agent for its ordinary
services hereunder, the fees determined in accordance
with and payable as specified in the Schedule of Fees
set forth in Exhibit A attached hereto and made a part
hereof. In addition, the Company agrees to pay to
Escrow Agent its expenses incurred in connection with
this Escrow Agreement including, but not limited to,
the reasonable cost of legal services in the event
Escrow Agent reasonably deems it necessary to retain
counsel. Such expenses shall be paid to Escrow Agent
within 30 days following receipt by the parties hereto
of a written statement setting forth such expenses. As
security for all fees and expenses of Escrow Agent
hereunder and any and all losses, claims, damages,
liabilities, and expenses incurred by Escrow Agent in
connection with its acceptance of appointment hereunder
or with the performance of its obligations under this
Escrow Agreement and to secure the obligation of the
parties hereto to indemnify Escrow Agent as set forth
in Section 12 hereof, Escrow Agent is hereby granted a
security interest in and a lien upon the Escrow Funds,
which security interest and lien shall be prior to all
other security interests, liens, or claims against the
Escrow Funds or any part thereof.
Section 14. Representations and Warranties.
(a) The Company makes the following
representations and warranties to Escrow
Agent:
(i) The Company is a corporation duly
organized, validly existing, and in good
standing under the laws of the Commonwealth
of Massachusetts, and has full power and
authority to execute and deliver this Escrow
Agreement and to perform its obligations
hereunder.
(ii) This Escrow Agreement has been duly
approved by all necessary corporate action of
the Company, including any necessary
shareholder approval, has been executed by
duly authorized officers of the Company, and
constitutes a valid and binding agreement of
the Company, enforceable in accordance with
its terms; provided however, that
enforceability is subject to: (a) applicable
bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance, and
similar federal and state laws affecting the
rights and remedies of creditors generally,
and (b) general principles of equity limiting
the availability of equitable remedies
(including but not limited to the remedy of
specific performance), whether considered in
a proceeding at law or in equity.
(iii) The execution, delivery, and
performance by the Company of this Escrow
Agreement will not violate, conflict with, or
cause a default under, the certificate of
incorporation or bylaws of the Company, any
applicable law or regulation, any court order
or administrative ruling or decree to which
the Company is a party or any of its property
is subject, or any agreement, contract,
indenture, or other binding arrangement to
which the Company is a party or any of its
property is subject.
(iv) No party other than the parties
hereto and the prospective Purchasers have
any lien or claim against, or security
interest in, the Escrow Funds or any part
thereof. No financing statement under the
Uniform Commercial Code is on file in any
jurisdiction claiming a security interest in
or describing (whether specifically or
generally) the Escrow Funds or any part
thereof.
(v) The Company hereby acknowledges
that the status of Escrow Agent is that of
agent only for the limited purposes set forth
herein, and hereby represents and covenants
that no representation or implication shall
be made that the Escrow Agent has
investigated the desirability or advisability
of investment in the Securities or has
approved, endorsed, or passed upon the merits
of the investment therein and that the name
of the Escrow Agent has not and shall not be
used in any manner in connection with the
offer or sale of the Securities other than to
state that the Escrow Agent has agreed to
serve as escrow agent for the limited
purposes set forth herein.
(vi) All of the representations and
warranties of the Company contained herein
are true and complete as of the date hereof.
(b) Each Purchaser makes the following
representations and warranties to Escrow
Agent:
(i) Purchaser has full power and
authority to execute and deliver this Escrow
Agreement, the Transaction Documents, and to
perform its obligations hereunder.
(ii) This Escrow Agreement and the
Transaction Documents have been duly approved
by all necessary action of Purchaser,
including any necessary shareholder approval,
has been executed by persons duly authorized
by Purchaser, and constitutes a valid and
binding agreement of Purchaser, enforceable
in accordance with its terms.
(iii) The execution, delivery, and
performance by Purchaser of this Escrow
Agreement will not violate, conflict with, or
cause a default under, the organizational or
governing documents of Purchaser, any
applicable law or regulation, any court order
or administrative ruling or decree to which
Purchaser is a party or any of its property
is subject, or any agreement, contract,
indenture, or other binding arrangement to
which Purchaser is a party or any of its
property is subject.
(iv) Purchaser hereby acknowledges that
the status of Escrow Agent is that of agent
only for the limited purposes set forth
herein, and hereby represents and covenants
that no representation or implication shall
be made that the Escrow Agent has
investigated the desirability or advisability
of investment in the Securities or has
approved, endorsed, or passed upon the merits
of the investment therein and that the name
of the Escrow Agent has not and shall not be
used in any manner in connection with the
offer or sale of the Securities other than to
state that the Escrow Agent has agreed to
serve as escrow agent for the limited
purposes set forth herein.
(v) All of the representations and
warranties of Purchaser contained herein and
in the Transaction Documents are true and
complete as of the date hereof and will be
true and complete at the time of any deposit
to or disbursement from the Escrow Account.
Section 15. Consent to Jurisdiction and Venue.
In the event that the Company and Escrow Agent hereto
commence a lawsuit or other proceeding relating to or
arising from this Escrow Agreement, the Company and
Escrow Agent hereto agree that the United States
District Court for the Northern District of Georgia
shall have the sole and exclusive jurisdiction over any
such proceeding. If such court lacks federal subject
matter jurisdiction, the Company and Escrow Agent agree
that the Superior Court of Fulton County, Georgia
shall have sole and exclusive jurisdiction. Any of
these courts shall be proper venue for any such lawsuit
or judicial proceeding and the Company and Escrow Agent
waive any objection to such venue. The Company and
Escrow Agent consent to and agree to submit to the
jurisdiction of any of the courts specified herein and
agree to accept service or process to vest personal
jurisdiction over them in any of these courts. It is
the intention of the parties to this Escrow Agreement
that the situs of the Escrow Account created by this
Escrow Agreement be, and that it be administered in the
state in which the principal office of the Escrow Agent
is located from time to time acting hereunder.
Section 16. Notice.
All notices and other communications hereunder shall be
in writing and shall be deemed to have been validly
served, given, or delivered five (5) days after deposit
in the United States mails, by certified mail with
return receipt requested and postage prepaid, when
delivered personally, one (1) day after delivery to any
overnight courier, or when transmitted by facsimile
transmission facilities (with machine generated receipt
confirmation), and addressed to the party to be
notified as follows:
If to the Company at:
Cambex Corporation
360 Second Avenue
Boston, Massachusetts 01254
Attention: Peter Kruy,
Executive Vice President
Tel: (781) 890-6000
Fax: (781) 890-2899
Tax ID #04-442959
If to Sovereign at:
Sovereign Capital Advisors,
LLC
3340 Peachtree Road, NE
Suite 2265
Atlanta, Georgia 30326
Attention: Paul D. Hamm
Tel: (404) 814-3737
Fax: (404) 812-3738
If to the Escrow Agent at:
SunTrust Bank, Atlanta
Corporate Trust Division
25 Park Place
24th Floor
Atlanta, GA 30303
Attn: Rebecca Fischer
Telephone: (404) 588-7262
Telecopier: (404) 588-7335
If to Purchaser at:
The address set forth on the
counterpart signature page
hereto
or to such other address as
each party may designate for
itself by like notice.
Section 17. Amendment Waiver, etc.
This Escrow Agreement may be changed, waived,
discharged, or terminated only by a writing signed by
the Company, Purchasers, and Escrow Agent. No delay or
omission by any party in exercising any right with
respect hereto shall operate as a waiver. A waiver on
any one occasion shall not be construed as a bar to, or
waiver of, any right or remedy on any future occasion.
No waiver, modification, amendment, termination, or
rescission of this Escrow Agreement shall be effective
or binding upon Escrow Agent unless Escrow Agent shall
have specifically consented thereto in writing.
Section 18. Severability.
To the extent any provision of this Escrow Agreement is
prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions
of this Escrow Agreement.
Section 19. Governing Law.
This Escrow Agreement shall be construed and
interpreted in accordance with the internal laws of the
State of Georgia without giving effect to the
principles or rules governing conflict of laws.
Section 20. Entire Agreement.
This Escrow Agreement constitutes the entire agreement
among the parties relating to the acceptance,
collection, holding, and disbursement of the Escrow
Funds and sets forth in their entirety the obligations
and duties of the Escrow Agent with respect to the
Escrow Funds.
Section 21. Binding Effect.
All of the terms of this Escrow Agreement, as amended
from time to time, shall be binding upon, inure to the
benefit of and be enforceable by the respective
successors and assigns of the Company, Purchasers, and
Escrow Agent.
Section 22. Execution in Counterparts.
This Escrow Agreement may be executed in two or more
counterparts, which when so executed shall constitute
one and the same agreement.
Section 23. Termination.
Upon the first to occur of the disbursement of all
amounts in the Escrow Account or deposit of all amounts
in the Escrow Account into court pursuant to Section 7
hereof, this Escrow Agreement shall terminate and
Escrow Agent shall have no further obligation or
liability whatsoever with respect to this Escrow
Agreement or the Escrow Funds.
IN WITNESS WHEREOF, the parties hereto have caused this
Escrow Agreement to be executed under seal as of the
date first above written.
[Remainder of page intentionally left blank; signatures
on following pages]
COMPANY SIGNATURE PAGE
TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the Company hereto has caused this
Escrow Agreement to be executed under seal as of the
date first above written.
THE COMPANY:
CAMBEX CORPORATION
By: /s/ Peter Kruy
Name: Peter Kruy
Title: Executive
V.P.
ESCROW AGENT SIGNATURE PAGE
TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the Escrow Agent hereto has caused
this Escrow Agreement to be executed under seal as of
the date first above written.
ESCROW AGENT:
SunTrust Bank,
Atlanta
as Escrow Agent
By: /s/ Rebecca
Fischer
Its: Trust Officer
[Purchaser Signature Pages Attached]
PURCHASER SIGNATURE PAGE
TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the Purchaser hereto has caused
this Escrow Agreement to be executed under seal as of
the date first above written.
PURCHASER
Purchaser Name:
SovCap Equity
Partners, Ltd.
By: /s/ Barry
W.Herman
Name: Barry
W.Herman
Title: Director
Purchaser Name SovCap Equity Partners, Ltd.
("Purchaser")
Address and Cumberland House
Facsimile Number
#27 Cumberland Street
P.O. Box CB - 13016
Nassau, New Providence
The Bahamas
242-356-0037
Principal Amount
of Bridge Notes $1,500,000.00 - Cambex Corporation
Purchased
Purchaser's Legal
Counsel
Address and Balboni Law Group, L.L.C.
Facsimile Number
3475 Lenox Road, Suite 990
Atlanta, GA 30326
404-812-3101
PURCHASER SIGNATURE PAGE
TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the Purchaser hereto has caused
this Escrow Agreement to be executed under seal as of
the date first above written.
PURCHASER
By: /s/ Jan Telander
Name: Jan Telander
Title: Director
Purchaser Name Correllus International Ltd.
("Purchaser")
Address and c/o EIG Corporate Finance Services
Facsimile Number
Edificio Marina Marbella, 6B
Avenida Sever Olhoa 28
29600 Marbella, Spain
+34-952-858-068
Securities
Purchased Series I Bridge Note
Purchase Price US$ 250,000.00
Purchaser's Legal
Counsel
Address and Per Ronnstrom.
Facsimile Number
Box 7315
SE-10390 Stockholm, Sweden
Fax: +46-8-796-8223
PURCHASER SIGNATURE PAGE
TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the Purchaser hereto has caused
this Escrow Agreement to be executed under seal as of
the date first above written.
PURCHASER
Purchaser Name:
SovCap Equity
Partners, Ltd.
By: /s/ Barry
W.Herman
Name: Barry
W.Herman
Title: President
Purchaser Name SovCap Equity Partners, Ltd.
("Purchaser")
Address and Cumberland House
Facsimile Number
#27 Cumberland Street
P.O. Box N-10818
Nassau, New Providence
The Bahamas
242-356-0037
Securities
Purchased
Purchase Price $100,000.00
Purchaser's Legal
Counsel
Address and
Facsimile Number
PURCHASER SIGNATURE PAGE
TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the Purchaser hereto has caused
this Escrow Agreement to be executed under seal as of
the date first above written.
PURCHASER
By: /s/ A. De
Nazareth
Name: A. De
Nazareth
Title: Co. Secretary
Purchaser Name Arab Commerce Bank Ltd
("Purchaser")
Address and P.O. Box 309
Facsimile Number
Grand Cayman
Cayman Islands
0171 437 2413 (London)
Securities
Purchased $150,000.00
Purchase Price $150,000.00
Purchaser's Legal
Counsel
Address and
Facsimile Number
EXHIBIT A
TO
ESCROW AGREEMENT
Schedule of Fees
Schedule of Fees:
Escrow Fee $2,000.00
Wire Transfer Fee 10.00 per wire